H.F. and Others v. France

Parties (including notable third parties)

H.F., M.F, J.D., A.D. (The Applicants); France (The Respondent); Third Parties: Council of Europe Commissioner for Human Rights, Belgian Government, Danish Government, Netherlands Government, Norwegian Government, Spanish Government, Swedish Government, United Kingdom Government, The United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, The United Nations Special Rapporteur extrajudicial, summary or arbitrary executions, The United Nations Special Rapporteur on trafficking in persons, particularly women and children, Reprieve, Rights and Security International, Avocats sans frontières, The National Advisory Commission on Human Rights (Commission nationale consultative des droits de l’homme – CNCDH), The Défenseur des droits, The Clinique des droits de l’homme, Ghent University Human Rights Centre

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Summary of Facts

The four Applicants are all French nationals and are the parents of daughters, also French nationals, that travelled to Syria between 2014 and 2015, on their own initiative and with their respective partners, to join ‘Daesh’ (or ‘ISIS’). The first two Applicants, H.F. and M.F., are the parents of L. (born 1991), who left in July 2014; the second two, J.D. and A.D., are the parents of M. (born 1989), who left in early July 2015. Following offensives by the Syrian Democratic Forces (‘SDF’), the two daughters were arrested and imprisoned in camps controlled by the SDF and run by the Autonomous Administration of North and East Syria (‘AANES’), along with their children who had been born in Syria.

According to reports, conditions in the camps exposed inhabitants to malnutrition, dehydration, violence and sexual exploitation, inhumane and degrading detention conditions, extreme weather conditions, and post-traumatic stress. The Applicants’ daughters and grandchildren suffered from untreated physical and mental health conditions. Both daughters expressed their wish to return to France through messages to their parents, with L. formally requesting repatriation in April 2019 and M. authorising her parents to act on her behalf before the Court in 2021.

There was no prospect of the women being tried in north-eastern Syria. While Syrian nationals were tried according to local law procedures, AANES had requested that foreigners be tried at international tribunals in accordance with international law. No such tribunal had been established. Meanwhile, criminal proceedings against the Applicants’ daughters for participation in a terrorist organisation were brought in French domestic courts.

Between March 2019 and January 2021, France organised the repatriation of 35 French minors from north-eastern Syrian camps over 5 missions, on a ‘case-by-case’ basis, followed by the repatriation of 35 minors and 16 mothers in July 2022. The Applicants’ family members were not among them.

The Applicants subsequently brought proceedings before domestic courts seeking the repatriation of their family members by French authorities. These actions were dismissed at all levels on the ground that the measures requested were indissociable from the conduct of France’s international relations and therefore fell outside judicial competence. The courts held that repatriation required negotiations with foreign authorities and intervention on foreign territory, matters reserved to diplomatic action rather than judicial review.

The applications before the European Court of Human Rights were lodged in 2019 and 2020 respectively. In 2021, the Fifth Section of the Court relinquished jurisdiction to the Grand Chamber.

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Legal Arguments

Legal arguments by the Applicants

The Applicants argued that, although France did not exercise effective control over the territory, Convention obligations could arise from State actions within France that directly affected persons abroad. They maintained that a jurisdictional link under Article 1 was established through the bond of nationality and France’s exclusive authority over their daughters’ legal situation. Their daughters were French nationals, had previously lived in France, and had expressed a longstanding wish to return to stand trial there. They were not subject to the territorial jurisdiction of any other State and would not be tried in Syria, leaving France as the only State with jurisdiction over them. The Applicants further pointed to France’s prior repatriation of children as evidence of its operational capacity and discretionary control over repatriation decisions. They alleged that by refusing to act, France exposed their family members to inhuman and degrading treatment contrary to Article 3 of the Convention and, in application no. 44234/20, interfered with the right to respect for private and family life under Article 8.

The Applicants also argued that France was depriving their daughters and grandchildren of their right to enter its territory under Article 3(2) of Protocol No. 4. They maintained that this right is absolute and imposes positive obligations on the State to take necessary measures to secure it. Referring to C.B. v. Germany, they contended that deprivation of this right can result from inaction as well as formal measures, and that France’s refusal to repatriate their family members, which they argued were motivated by political considerations, amounted to such inaction. The Applicants described the decision as arbitrary, unfair, unforeseeable, and inappropriate, particularly given prior repatriations without clear criteria. They also pointed to the incoherence of France's position: their daughters were subject to criminal proceedings in France, yet the SDF had no intention of trying them. In their view, repatriation was the only effective means of guaranteeing the right to return.

The Applicants further complained, under Article 13 taken together with Article 3(2) of Protocol No. 4, that they had no effective domestic remedy by which to challenge the decision not to carry out the requested repatriations.

Legal arguments by the Respondent

The French Government argued that the Applicants’ family members did not fall within France’s jurisdiction within the meaning of Article 1 of the Convention.

The Respondent argued, inter alia, that France exercised no effective control over north-east Syria, and that the authorities controlling the camps were not dependent on France. It also rejected the idea that its previous humanitarian repatriations could be used to infer France’s capacity to act, and thereby establish a jurisdictional link, suggesting that this would furthermore establish jurisdiction based on qualifications that were relative and subject to change, thereby giving rise to significant legal uncertainty.

The Government also argued that the Applicants’ daughters’ French nationality did not in itself establish jurisdiction and deploy Convention obligations, and that personal jurisdiction over nationals abroad ‘did not encompass a “general principle of repatriation”’ (paragraph 160). According to the Government, equating nationality with jurisdiction under Article 1 would impose obligations toward 2.5 million expatriates, contrary to the Convention system and international law, and would risk a flood of applications and enforcement problems. In any case, the Government suggested that any ties with France were broken when the daughters joined a terrorist group, while none existed for grandchildren born in Syria.

The Government did recognise that Article 3(2) of Protocol No. 4 was susceptible to extraterritorial application, but argued that this provision did not apply to the situation of individuals wishing to return to their country but prevented from doing so for material reasons. Article 3(2) of Protocol No. 4 sought to prevent the introduction of legislation in States that would prohibit the return of certain nationals, and therefore did not create any positive obligations for States (such as organising repatriation). The Government also argued that it would be unwise to create a new right of this kind due to the burden that an obligation to repatriate would place on States. The Government warned that interpreting the provision to impose a positive obligation would have a ‘chilling effect’ deterring States from conducting humanitarian repatriations for fear of creating precedents (paragraph 225).

Third Party Intervention

Several intervening governments supported France’s position that the Applicants’ relatives did not fall within its jurisdiction under Article 1. They argued that France exercised no effective control over north‑eastern Syria or the camps, and that nationality alone could not create jurisdiction without exceptional circumstances of authority or control. On Article 3(2) of Protocol No. 4, the intervening governments maintained that the provision and its associated case law did not impose a positive obligation to repatriate or assist nationals to reach the border, and that humanitarian repatriations or a mere capacity to act could not establish jurisdiction or transform the provision into an extraterritorial duty.

By contrast, the Council of Europe Commissioner, French rights bodies, UN Special Rapporteurs, and NGOs viewed the bond of nationality and France’s operational capacity as sufficient to establish jurisdiction, opposing the restrictive approach advocated by France and the supporting governments. On Article 3(2) of Protocol No. 4, many observed that given the deteriorating conditions and the vulnerability of children, repatriation is the only practical means to secure the right to enter one’s own country. In addition, it was suggested that minors should not be separated from their mothers, and repatriation would also enable prosecution at home and advance long‑term security. These interveners further invoked positive obligations under Articles 2, 3 and 4 of the Convention and highlighted the need for non‑arbitrary decision‑making and effective remedies where entry is effectively denied through inaction.

Outcome

The Court considered that there was no need to examine the complaint under Article 13 separately, as relevant substantive elements of this claim would be considered in its analysis of Article 3(2) of Protocol No. 4.

The Court unanimously declared the complaint under Article 3 of the Convention inadmissible, finding that the Applicants’ family members did not fall within France’s jurisdiction. It held that France exercised no effective control over north-eastern Syria or over the individuals concerned, and that neither the French nationality of those individuals nor the opening of domestic proceedings against the daughters created a jurisdictional link, as those proceedings concerned past acts of joining a terrorist organisation and not the conditions in the camps giving rise to the alleged violations. The Court rejected the argument that nationality or France’s operational capacity to repatriate constituted a sufficient connection with regards to Article 3, noting that decisions taken at national level with extraterritorial effects do not establish jurisdiction and that neither domestic nor international law imposes a duty to repatriate.

Conversely, the Court found that France’s jurisdiction was established in respect of the alleged violation of Article 3(2) of Protocol No. 4, and by a majority declared it admissible. It was the first time that the Court decided on the existence of a jurisdictional link between a State and its nationals in respect of a complaint under Article 3(2) of Protocol No. 4. Again, it rejected the Applicants’ arguments that the French nationality of their family members, or the domestic legal proceedings against them, constituted a sufficient connection as to establish a jurisdictional link with the State. However, the Court decided that certain circumstances where individuals wish to enter the State of their nationality may give rise to a jurisdictional link between individuals and the State for the purposes of Article 1 of the Convention. In the present case, special circumstances included: official requests to the French authorities for repatriation and assistance; the real and immediate threat to the family members’ lives and physical wellbeing and extreme vulnerability of the children; the materially impossibility for the individuals concerned to reach the French border, or any State border, without the assistance of the French authorities; France's demonstrated operational capacity to repatriate, having already done so for other French nationals; and the willingness of AANES to hand over the female detainees of French nationality and their children to the national authorities.

The Court proceeded to determine the extent and scope of France’s positive obligations under Article 3(2) of Protocol No. 4 in these circumstances. The generally accepted interpretation of the scope of the prohibition corresponds to a negative obligation of the State, that it will refrain from formal measures that deprive nationals of the right to enter its territory. However, C.B. v. Germany shows that the measure of deprivation can vary in its degree of formality; it cannot be ruled out that indirect or informal measures which de facto deprive the national of the effective enjoyment of the right to return may, depending on the circumstances, be incompatible with this provision. Although the Court reiterated that French nationals in these camps cannot claim a general right to repatriation on the basis of the right to enter national territory under Article 3(2) of Protocol No. 4, it found that the provision may impose on a State certain positive obligations where, in view of the specificities of a given case, a refusal by that State to take any action would leave the national concerned in a de facto exile. The Court stated that any such requirement must be interpreted narrowly and will be binding on States only in exceptional circumstances.

The Court found exceptional circumstances in this case. It concluded that it was therefore incumbent upon the French authorities to surround the decision-making process concerning the requests for repatriation by appropriate safeguards against arbitrariness. It found that the safeguards afforded to Applicants were inappropriate; the Applicants did not receive any explanation for the denial of their requests that would indicate an individual examination of the situation, and that this could not be remedied before the domestic courts. Because the Applicants were deprived of challenging the grounds relied upon by authorities and of verifying that those grounds were not arbitrary, the Court by majority found a violation of Article 3(2) of Protocol No. 4. The Court emphasised that such review does not necessarily mean a court could order repatriation, but merely that the decision-making process must be subject to scrutiny.

The Court considered that a finding of the violation was sufficient to compensate for any non-pecuniary damage sustained by the Applicants. It considered that the French Government must re-examine those requests. It dismissed the remainder of the Applicants’ claim.

Separate opinions

A joint concurring opinion considered the violation of Article 3 of Protocol No. 4 to be substantive as well as procedural in character. It criticised the limitation of the enquiry to whether the decision-making had safeguarded against arbitrariness, which it warned could create a category of non-arbitrary exile. It stated that the predominant reason for inaction was related to the desirability of the repatriations, and found this a de facto exile that amounted to a substantive violation.

A joint partly dissenting opinion disagreed that the Applicants’ request for the repatriation of their family members fell within the provision of Article 3(2) of Protocol No. 4, and criticised the limited substantive right to repatriation that the decision seemed to amount to.

A partly dissenting opinion disagreed that the finding of the violation constituted just satisfaction.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Regional	European Convention on Human Rights	Article 1, 3, 4, 8, 41, 46 and Article 3 of Protocol No. 4
Domestic	French Criminal Code	Articles 113-116; Article 421-2-1 of Chapter 1 (Acts of terrorism) of Title 2 (Terrorism)
Domestic	Decree no. 76-548 of 16 June 1976	Article 11
International	The Vienna Convention on Consular Functions	Article 5
International	Convention on the Rights of the Child	Articles 2, 3
International	International Covenant on Civil and Political Rights	Article 12(4)
International	Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children	Article 8

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Helen Duffy, ‘“Foreign Fighters”, Syrian Camps and the Jurisdictional Quagmire’ in Francesca Capone, Christophe Paulussen and Rebecca Mignot-Mahdavi (eds), Returning Foreign Fighters: Responses, Legal Challenges and Ways Forward (TMC Asser Press 2023) 169.

• This book chapter provides comparisons of how different international human rights bodies have interpreted the extraterritorial scope of human rights obligations in the context of counter-terrorism.
• The author examines the ECtHR's approach to extraterritorial jurisdiction in H.F. and Others v. France and notes that while the Court avoided expanding its general two-part test (control over territory or persons), it nevertheless found jurisdiction under Article 3(2) of Protocol No. 4 by focusing on ‘special features’ including nationality, official requests for help, imminent threats to life and dignity, which demonstrates a purposive approach to ensure the Convention's effectiveness in the context of the Syrian camps.
• The author uses the case to illustrate that the ECtHR remains an outlier compared to the UN Human Rights Committee, the Inter-American Court, the African Commission, and the UN Committee on the Rights of the Child, all of which have adopted broader, more flexible approaches to extraterritorial jurisdiction. The ECtHR's refusal in H.F. to adopt a more general standard is contrasted with the UNCRC's decisions concerning the same French children, which found jurisdiction based on the state's ‘capability and power to protect’.